United States District Court, S.D. Illinois
SCOTT JENKINS and RHONDA STEPHANIE ALEXANDROPOULOS, Plaintiffs,
BRUCE BURKEY, TAYLOR LAW FIRM PC, JOICE BASS, JENNIFER HOSTETLER and LEWIS ROCA ROTHGERBER LLP, Defendant.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on the motion of defendants
Bruce Burkey and Taylor Law Offices, PC (“TLO”;
misnamed in the Second Amended Complaint as Taylor Law Firm
PC) to dismiss the claims against them pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Doc. 14). Plaintiff Scott
Jenkins has responded to the motion (Docs. 31 & 46).
Plaintiff Rhonda Alexandropoulos has not responded to the
motion, so under Local Rule 7.1(c) the Court finds she has
admitted it has merit.
originally filed a nearly identical lawsuit on September 29,
2015, in the United States District Court for the Eastern
District of Missouri, which described the litigation as
This litigation arises from a prior lawsuit plaintiff Jenkins
filed against his daughters in Nevada to regain control of a
family-owned company in Nevada (the “Nevada
Lawsuit”). In that lawsuit, Jenkins' daughters
retained defendants Bass and Hostetler of the Nevada law firm
Lewis Roca Rothgerber Christie LLP as their attorneys. In
addition, plaintiff Jenkins' daughters retained defendant
Burkey of the Taylor Law Firm, P.C. in Illinois.
* * *
Plaintiffs have now brought a variety of claims against the
named attorneys and law firms, which all relate to the
defendants' work representing their clients opposite
plaintiff Jenkins in the Nevada Lawsuit. These claims include
intentional infliction of emotional distress, negligent
infliction of emotional distress, intentional interference
with a prospective economic advantage, defamation, negligent
supervision, and breach of contract. Plaintiffs have also
alleged that defendants committed fraud, fraudulent
misrepresentation, conspiracy, theft, the unauthorized
practice of law, illegal possession of personal credit file
information, violating the Illinois Consumer Fraud and
Deceptive Business Practice Act, blackmail, extortion,
coercion, mail fraud, and sending threatening communications
by mail. Plaintiffs also allege that defendants Bass and
Hostetler illegally filed or threatened to file lis
pendens in Illinois and Missouri.
Mem. & Order at 1-2, Jenkins v. Burkey, No.
4:15-cv-1494-SNLJ (E.D. Mo. June 21, 2016). In June 2016, the
Eastern District of Missouri court dismissed the action for
lack of personal jurisdiction over the defendants, so on July
14, 2016, Jenkins and Alexandropoulos refiled the case in the
Southern District of Illinois as this case. Burkey and TLO
believe the plaintiffs have failed to state a claim for the
ten counts pled against them.
Standard for Dismissal
reviewing a Rule 12(b)(6) motion to dismiss, the Court
accepts as true all allegations in the complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To avoid dismissal under Rule 12(b)(6) for failure
to state a claim, a complaint must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). This
requirement is satisfied if the complaint (1) describes the
claim in sufficient detail to give the defendant fair notice
of what the claim is and the grounds upon which it rests and
(2) plausibly suggests that the plaintiff has a right to
relief above a speculative level. Bell Atl., 550
U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); EEOC v. Concentra Health Servs., 496
F.3d 773, 776 (7th Cir. 2007). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Bell Atl.,
550 U.S. at 556). “Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
Bell Atlantic, the Supreme Court rejected the more
expansive interpretation of Rule 8(a)(2) that “a
complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief, ” Conley v. Gibson, 355
U.S. 41, 45-46 (1957). Bell Atlantic, 550 U.S. at
561-63; Concentra Health Servs., 496 F.3d at 777.
Now “it is not enough for a complaint to avoid
foreclosing possible bases for relief; it must actually
suggest that the plaintiff has a right to relief . . . by
providing allegations that ‘raise a right to relief
above the speculative level.'” Concentra Health
Servs., 496 F.3d at 777 (quoting Bell Atl., 550
U.S. at 555).
Bell Atlantic did not do away with the liberal
federal notice pleading standard. Airborne Beepers &
Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667
(7th Cir. 2007). A complaint still need not contain detailed
factual allegations, Bell Atl., 550 U.S. at 555, and
it remains true that “[a]ny district judge (for that
matter, any defendant) tempted to write ‘this complaint
is deficient because it does not contain . . .' should
stop and think: What rule of law requires a
complaint to contain that allegation?” Doe v.
Smith, 429 F.3d 706, 708 (7th Cir. 2005) (emphasis in
original). Nevertheless, a complaint must contain “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl., 550 U.S. at 555. If the factual detail of
a complaint is “so sketchy that the complaint does not
provide the type of notice of the claim to which the
defendant is entitled under Rule 8, ” it is subject to
dismissal. Airborne Beepers, 499 F.3d at 667.
case of a pleading alleging fraud, the standard is different.
Federal Rule of Civil Procedure 9(b) requires a plaintiff
alleging fraud to “state with particularity the
circumstances constituting fraud.” Generally, pleading
“with particularity” requires a plaintiff to
describe the “who, what, when, where, and how” of
the fraud, although that formulation is not set in stone and
may vary based on the facts of a particular case. Pirelli
Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen
Co., 631 F.3d 436, 441-42 (7th Cir. 2011).
The particularity requirement ensures that plaintiffs do
their homework before filing suit and protects defendants
from baseless suits that tarnish reputations. And the
requirement dovetails with lawyers' ethical obligations
to ensure they conduct a pre-complaint inquiry before signing
off on their clients' contentions.
Id. at 439.
all allegations in the plaintiffs' favor, the Second
Amended Complaint alleges the following relevant facts
related to Burkey and TLO.
the Nevada Lawsuit began, Jenkins was the manager of CSRESL,
LLC, a Nevada limited liability company, and was authorized
to act on its behalf. Burkey was an attorney licensed to
practice in Illinois but not in Nevada. He worked for TLO, an
Illinois law firm. Burkey represented Jenkins' two
daughters, Rebecca Frausto and Christina Jenkins, in
connection with their interest in CSRESL.
point Burkey obtained confidential in-house emails between
attorneys and staff of a Colorado law firm Jenkins had
retained to assist him with administering his deceased
aunt's estate. The emails were about a subject completely
unrelated to issues involved in the Nevada Lawsuit. Each
email contained a warning that it was confidential and
instructed anyone possessing it without authorization to
destroy it and notify the email's sender immediately.
Burkey did not comply with these instructions when he came
into possession of the emails and instead altered the emails
to make it appear that Jenkins had done something illegal
during the estate administration, that he had implicated
Christina Jenkins in illegal activity, and that one of
Jenkins' cousins would pursue Christina Jenkins for money
from the aunt's estate that was used to pay for Christina
Jenkins' education. Burkey altered the emails to convince
Christina Jenkins to oppose her father and participate in
removing him as manager of CSRESL. Burkey knew but failed to
tell Christina Jenkins that a mediated settlement agreement
concerning the aunt's estate would have prevented the
cousin from seeking recourse against her.
September 2011, Burkey represented to Frausto and Christina
Jenkins that he was qualified and permitted to draft a
document entitled “Action by Majority Members of
CSRESL, LLC” that purported to remove Jenkins as the
manager of CSRESL and replace him with Frausto. The document
cites Nevada Revised Statute 86.294 as its authority,
although Burkey knew that there was no such
statute. Burkey instructed Frausto and Christina
Jenkins to sign the document as owners of the majority of
membership interest in CSRESL, and they did. Burkey did not
give Jenkins advance notice of the corporate action and did
not have the proper authority from CSRESL, its owners or its
members to draft the document. Burkey mailed the document to
the Nevada Secretary of State in December 2011 for filing.
Jenkins believes the document was not effective to remove him
as manager of CSRESL.
April 2012, Burkey helped his clients remove all the money
from a CSRESL bank account of which Jenkins believed he
controlled as manager of CSRESL. In that same month, Burkey
informed the United States Postal Service, a tenant of a
CSRESL property, not to send rent payments to Jenkins as the
manager CSRESL. At the time, Frausto and Christina Jenkins
owed Burkey more than $10, 000 in legal fees.
point, Jenkins sued Frausto and Christina Jenkins in the
Nevada Lawsuit over the question of who controlled CSRESL. In
the course of that litigation, Burkey provided the altered
emails from the Colorado law firm to Frausto and Christina
Jenkins' attorneys in the Nevada Litigation for use in
point, Burkey sent letters to Jenkins' attorney
threatening Jenkins with “purported criminal
consequences” if he did not agree to a civil settlement
as Burkey requested. Burkey has never presented Jenkins with
evidence of any criminal or civil wrongdoing by Jenkins.
other letters to Jenkins' attorneys, Burkey said things
that Jenkins believes were slanderous and degrading. In a
2012 meeting that Jenkins attended, Burkey falsely accused
Jenkins of certain conduct without allowing Jenkins to defend
himself and threatened to divulge false information about
Jenkins and his business dealings if Jenkins did not agree to
step down as manager of CSRESL and cede control of the
company to his daughters. Burkey did not let Jenkins know he
had already been removed as manager six months earlier, in
had an unauthorized copy of Jenkins' confidential
personal credit report from TransUnion that should have been
transmitted only to Jenkins. Burkey neither destroyed the
credit report nor sent it to Jenkins. Instead, he used it to
convince Frausto and Christina Jenkins that Jenkins was in
bad financial shape and used it in the Nevada Lawsuit.
used the United States Postal Service to transmit documents
in connection with the aforementioned acts.
claims that he was forced to make personal expenditures of
over $200, 000, mostly in legal fees, because of Burkey's
alleged illegal conduct. He has also suffered distress and
emotional damages from the loss of love and contact with his
daughters and grandchild.
and TLO ask the Court to dismiss all counts against them; the
Court addresses each count in turn.
Count I: Fraud and Fraudulent Misrepresentation
Count I, Jenkins alleges Burkey made a false statement in the
“Action by Majority Members of CSRESL, LLC” by
citing a Nevada statute that did not exist, and then directed
Frausto and Christina Jenkins to sign the improper document.
Jenkins further alleges Burkey “altered and failed to
adhere to” the emails from the Colorado law firm in
violation of Colorado law.
motion to dismiss, Burkey argues Jenkins has failed to plead
common-law fraud under Illinois or Nevada law.
Illinois law, the elements of fraudulent misrepresentation,
also referred to as common-law fraud, are:
(1) a false statement of material fact; (2) knowledge or
belief of the falsity by the person making it; (3) intention
to induce the other party to act; (4) action by the other
party in reliance on the truth of the statements; and (5)
damage to the other party resulting from such reliance.
Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd. of Dirs.,
973 N.E.2d 880, 889 (Ill. 2012). Nevada law on fraudulent
misrepresentation is similar to Illinois law. Under Nevada
law, the elements of fraudulent misrepresentation are:
1. A false representation made by the defendant;
2. Defendant's knowledge or belief that the
representation is false (or insufficient basis for making the
3. Defendant's intention to induce the plaintiff to act
or to refrain from acting in reliance upon the
4. Plaintiff's justifiable reliance upon the